Congress Brings Sanity to the Appointment of the Head of US Copyright Office — Music Tech Solutions

By Chris Castle

The House Judiciary Committee has just issued a carefully worded policy paper regarding the appointment of the next Register–notwithstanding the rather mean spirited “and your little dog, too” justifications given by some in the anti-copyright crowd who are promoting the Library’s recent deal with the Berkman Center’s Digital Public Library of America to turn a digitized Library of Congress into a kind of feeder to Kickass Torrents with sovereign immunity.

via Congress Brings Sanity to the Appointment of the Head of US Copyright Office — Music Tech Solutions

Academic Copyleftists Unintentionally Bolster Constructive Termination Charge in Firing of Register of Copyrights

<publicity images of Bridy and Butler”hot linked” from UVA and Stanford servers were deleted after Bridy and Butler expressed displeasure with the article and use of images. >

In defending the questionable dismissal of Maria Pallante as Register of Copyrights are copyleft academics Brandon Butler and Annemarie Bridy actually bolstering the case for action against Dr Hayden the Librarian of Congress for retaliatory constructive termination?

If you weren’t aware the newly appointed Librarian of Congress “reassigned” Maria Pallante the Register of Copyrights to a ambiguous new position that included “point of sales” at the Library gift shop.   This was a major screw up by the new Librarian Dr. Hayden. You see, if instead of firing someone for cause, you instead assign them to a new position well beneath their status, secretly hoping they will quit, this is generally termed “constructive termination.”  Constructive termination is a kind of wrongful termination and it is conceivable that the LOC could be investigated or hit with some sort of lawsuit.

Read more on the dismissal and Google angle here:

“Maria Pallante served for more than five years as the U.S. register of copyrights, a division of the Library of Congress. Two weeks ago Ms. Pallante was reshuffled to an advisory post for “digital strategy” she never sought, a job that included expanding the library gift shop. Three days later she resigned in a letter to the Librarian of Congress, Carla Hayden, who had been sworn in mere weeks earlier. What happened?”

@wsj: A Copyright Coup in Washington: The new Librarian of Congress ousts a federal copyright defender [Congress should investigate]

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Recently we noticed a couple of remarkably similar pieces defending the actions of Dr. Hayden.

One is from law professor Annemarie Bridy who is a fellow at the Google-funded Stanford Center for the Internet and Society.   Here she makes an “uniformed guess” as to why Hayden may have justly terminated Pallante.

“The new librarian of Congress, Carla Hayden, made a rational executive decision to protect the structural integrity of her organization in the face of a fairly brazen internal challenge…When she arrived on the job, she was confronted with the uncomfortable fact that the director of a major unit within her organization — the Copyright Office — was in the process of actively trying to withdraw that unit from the organization, of which it has been a part since 1897. During her tenure, Pallante made no secret of her displeasure at having the Copyright Office operate under the umbrella of the Library of Congress.”

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/31/murder-or-not-at-the-library-of-congress/

There are two major problems with Bridy’s statement.   First, if Hayden had cause to terminate Pallante why did she resort to reassigning her to a demeaning position?   Isn’t Bridy  actually bolstering the argument that this was constructive termination?  Second,  Bridy correctly notes that Pallante’s insubordination (proposal to move the Copyright Office out of Library of Congress) occurred under the previous Librarian of Congress, not under Hayden.  However Bridy conveniently ignores the fact that the proposal to move the Copyright Office out of the Library of Congress was floated with the blessing of the previous Librarian of Congress.   So Pallante wasn’t behaving in an insubordinate manner by doing this was she?   Her actions only became problematic ex post facto, that is when Dr Hayden arrived.   Bridy seems to imply that Hayden came into the library predisposed to firing Pallante who had done nothing wrong.  The problematic attitude and actions seems to rest with the Librarian of Congress not with Pallante.   Again this bolsters the case for constructive termination.

Then there is this guy:  Brandon Butler the Library of the University of Virginia First Director of Information Policy (hmm wonder who ponied up money for the creation of a new position?).  Butler was formerly at the Google-funded American Research Libraries.  Not necessarily all a bad bunch but definitely part of the “do gooder” copyleft that doesn’t seem to realize they are further enriching the $400 billion Google at the expense of creators by further expanding fair use. More troubling is Butler’s close association with Jonathan Band a lobbyist and a named member of the Oracle v. Google  Shill list. 

Some of Band’s humility seems to have worn off on young Brandon:

“We Jeffersonians know better. Copyright is not a natural right, entitled to protection at the expense of the public good.”

That’s right, this DC  elite now  a carpet bagging  UVA “Jeffersonian” has apparently been appointed to decide what is in the public interest and we lowly creators can just settle for table scraps.

And <sigh> once again: Jefferson has nothing to do with the copyright clause. James Madison and Charles Pinckney were the authors of the copyright clause.  Further the “committee on detail” were given a choice and selected Madison’s more “natural right” phrasing and not his more “government grant economic license” phrasing.  It’s not a perfect argument, but certainly one is on more stable ground when arguing for a “natural rights” interpretation of constitutional copyright than otherwise.  Mr Butler and his fellow Jeffersonians in fact do not “know better” and it’s a shame that an at best moderately successful indie rocker is the only one pointing this out to the UVA  Library Director of Information Policy.

Forget “fake news”  this is fake history with a corporate friendly agenda from a high ranking employee at one of our most revered public institutions. Who’s doing the hiring over there?

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Jefferson:  “Dude, I didn’t have shit to do with the copyright clause.  I was partying in France. Well, mostly France,  one time me and a bunch of other Cavaliers went up to The Bulldog in Amsterdam! I got so fucked up I barely remember anything. I may have like invented the Dutch beer bike! I was that wasted!”  

But I digress.  Let’s look at what our Google chum and  “Jeffersonian” young overlord has to say about the retaliatory constructive termination of Pallante:

“I don’t have access to any insider info, but I don’t think I need it: former Register Maria Pallante didn’t think she should be working for the Library. The Librarian apparently agreed. The end.”

http://thetaper.library.virginia.edu/2016/11/14/working-the-ref-on-copyright-office-reform.html

This is a remarkable simplification that leaves out (once again) the  fact that Pallante proposed moving the Copyright Office with the blessings of the former librarian.  But let’s take this statement at face value. Butler suggests that the Librarian knew that by reassigning Pallante from Copyright Office to working directly for the Librarian overseeing “point of sales” (and a questionably legal “orphan works” project) Pallante would resign.  In other words assigning Pallante directly to the library produced the intended resignation. That is the very definition of retaliatory constructive termination.  You sure you want to defend the Librarian in this manner?

For this reason The Judiciary Committee should investigate the reassignment.   And If I were Pallante I’d sue the librarian. But that’s just me.

(If you want to encourage the House Judiciary Subcommittee on Intellectual Property to look into this “retaliatory constructive termination”  matter that would be helpful.  I suggest a polite and respectful note to your favorite representative on the committee. Remember many of these representatives are quite sympathetic to authors. Contact here .   Also support their proposal to have congress not Librarian appoint the next Register).

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But before we wrap this up let’s just look at one more thing that our elite “Jeffersonian” seems to be directing at me. It reads as a threat:

“The Librarian of Congress is a tough lady; as her city erupted after the death of Freddie Gray, Hayden supported her staff’s impulse to open the doors of the Enoch Pratt Free Library to create a safe space for folks to gather, talk, and heal. She doesn’t seem like someone you can bully, and suggesting she’s a puppet for Google or George Soros or whomever is maybe not the way to her heart.She has an opportunity to choose a Register that serves all of us, and I hope she will. “

As far as I know, I’m the only one who has pointed out her connections to George Soros.  Her connections to Google are well known and well reported.   So I’m gonna assume this is directed at me.   So basically what Butler is saying is: If I don’t keep my mouth shut they are gonna appoint a register that will go against the rights of authors. So I’d like to address Butler directly.

Bring it on dude.

First, if an individual blogger calling a powerful public servant to account for actions that appear to benefit crony capitalists is a form of “bullying” then we should just wrap up this entire experiment in democracy and freedom of speech and go back to our caves.

Second, the tone is clearly authoritarian.  Last I checked the Librarian of Congress works for the people.  Now maybe you “Jeffersonians” haven’t noticed but the populace has taken a very Jacksonian turn. On both the left and the right.   They are in no mood to be governed by elites who hand down edicts that benefit a tax avoiding, privacy violating, government corrupting multibillion dollar corporation like Google. There are millions of songwriters and authors who feel quite Jacksonian at the moment. Maybe we should just get rid of the Library of Congress?  It seems like an anachronism in this day and age. Don’t we already have the internet?   Put those old maps in one of the Smithsonian buildings.

Third, the Librarian has already pissed off members of the Judiciary committee with her handling of  Pallante.  The  Librarian by law answers to congress.   So nothing would help the cause of authors more than the LOC appointing a copyleft register of copyrights.  Can you imagine how quickly we’d be able to get her in front of a committee or two?   Think those pesky FOIA laws are bad?  Wait until the US Congress starts subpoenaing the Librarian.  I’d suggest they start by looking for communications between Public Knowledge, DPLA, ARL, and members of Stanford’s Center for the Internet and Society.   All funded by Google. Even the UVA library may be implicated as there are connections galore between yourself  and Google. And you appear to be using UVA resources to advocate.  Hope your bosses are happy with you a year from now.

Fourth as we’ve noted elsewhere we believe that he Librarian is already in deep shit by allowing “mass NOI” filings for compulsory mechanical licenses. Too complicated to explain here but it looks wrong and possibly criminal.     Songwriters have awoken and are already suing the DOJ on constitutional and administrative grounds.  BMI’s first challenge to the Google inspired DOJ 100% licensing rule was successful.  Songwriters are pissed and there are millions of us. I can almost guarantee you that the mass NOI filings will meet a similar response.

So I’d  be careful about threatening a songwriter.  Songwriters can easily paralyze the LOC with just the the “mass NOI” issue. What if we went farther and  started a campaign asking authors, songwriters, film makers and fine artists to stop donating works to the LOC?   You know we creators give the LOC  those works right?  The LOC doesn’t have to pay for them.  We can certainly change that.

House Judiciary Committee Proposes Copyright Office Reform That Makes Register of Copyrights Independent of Library of Congress

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Faux revolutionaries like Harold “Che Guevara” Feld of the Google Funded  astroturf group Public Knowledge, appear to have overplayed their hands and given creators an independent Copyright Office. 

The House Judiciary Committee is for all practical purposes making the Copyright Office independent of the Library of Congress. We know the devil is in the details.  However this looks like  a victory for creators.   For this will make it that much harder for Google, Silicon Valley and the copyleft “useful idiots” at Ivy League institutions to install an anti-creator copyleft puppet as a Register of Copyrights.  We certainly won’t see a repeat of the retaliatory constructive termination of the Register of Copyrights by a bush league Librarian of Congress.   This is a complete repudiation of the Google/Soros backed Librarian of Congress.

We really should all thank Dr Hayden,  Google and their funded/directed astroturf groups like Public Knowledge,  DPLA, Stanford CIS and EFF for overplaying their hands.   In the end they have given the fired Register everything she wanted.

Read the proposal below.

copyright-reform

 

Good News: Sirius XM Settles Pre-1972 With Turtles! Bad News: Settlement Slashes Sound Recording Royalty 50%

Listen to Music Tech Policy podcast with Chris Castle and Henry Gradstein 

This is a complicated one.  And I honestly don’t know how I feel about this.  I’m glad to see the Turtles win this case. Glad to see that Sirius is willing to pay on these pre-1972 recording,  not just for past plays but also going forward.  This was a tough fight for the the Turtles and lead attorney Henry Gradstein.   It’s rare to find artists and attorneys willing to take on a 3-5 year lawsuit like this without the backing of a major law firm.    All should be commended for their persistence.

However,  I also find what appears to be some bad news here.  About 2/3 the way through the podcast Henry Gradstein states:

“Everyone is gonna do very well with this settlement, just do the math”

Well I did the math and this is not necessarily true. I mean it is true in the sense that something for pre-1972 recordings  is better than nothing.  But what the proposed settlement does is apply a pro rata royalty rate of 5.5% of revenue to pre 1972 masters.   This  is kind of screwed up because the compulsory rate set by the Copyright Royalty Board (CRB) for post 1972 masters is 11%.  Maybe I’m misunderstanding something but it looks like now we have  two different royalty rates for pre and post 1972 recordings with the pre-1972 artists getting a raw deal.  Further what happens when Sirius turns this in as “evidence” at the next CRB rate court hearing for satellite rates?  The CRB could slash EVERYONE’s rate, including post 1972 recording.

This is not far fetched.  We watched Pandora use this exact same tactic on the low wattage  bunch over at MERLIN.  Essentially MERLIN cut a deal with Pandora for lower royalty rates for their independent labels in exchange for more airplay.   Then Pandora took this deal to the CRB and used that as a marker and set all rights holders  rates lower.  If you do the math on the Merlin deal it will cost ALL rights holders nearly $1 billion over 5 years. Read here:

Charles Caldas of MERLIN: Independent Labels’ Minus $15 Million Dollar Man

Billboard Finally Agrees the Pandora-Merlin Deal Could Cost Rights Holders A Billion Dollars in SoundExchange Royalties

This is where i’m deeply conflicted.   If you are the Turtles and Gradstein you are truly in a David and Goliath fight.  A company like Sirius could simply delay, delay and delay until your law firm runs out of money.   Gradstein may have spent millions of dollars at this point.  The legal fees and research that goes into gathering evidence for a case like this is shocking.  I myself spent three years doing research for  a class action against a music service.   Legal fees were the tip of the iceberg.  Hypothetically if one suspected a streaming service of illegally (peer to peer) copying, streaming and displaying your work without authorization one might have to hire forensic computer experts to “packet log” and otherwise document unauthorized copying, performance and display of 100s of tracks in dozens of US states and foreign territories.  This is not cheap!

So if you consider the fact that Gradstein was looking at the possibility of never recouping the money he spent on this lawsuit you can see why he might accept a less than perfect deal for the pre-1972 recordings.   Yet the fact remains, we are left with the troubling situation that post 1972 masters are worth 11% of gross revenue,  but pre 1972 masters are worth 5.5%.   This will not stand, Sirius would be stupid to not to use this to argue for a royalty rate reduction for all master recordings at current CRB hearings.  Further they have the fiduciary responsibility to their share holders.

I have a bad feeling about this.

 

MUST READ: Two Former U.S. Copyright Heads Defend Maria Pallante from Sacking by Rogue Librarian of Congress

This is quite an extraordinary statement by the two previous Registers of Copyright.  The call the dismissal unseemly and the ask the members of The Judiciary Committee  to Investigate!

“Two former heads of the U.S. Copyright Office sent the following letter to the chairs of the House and Senate Judiciary Committees in sharp criticism of the abrupt and possibly actionable sacking o…”

Source: MUST READ: Two Former U.S. Copyright Heads Defend Maria Pallante from Sacking by Rogue Librarian of Congress

Flo & Eddie Class Settlement with Sirius on Pre-72 Sound Recordings — Artist Rights Watch

Big congratulations to Flo & Eddie (aka The Turtles) and class counsel Henry Gradstein for a great settlement in their indie label class action against SiriusXM for pre-72 sound recordings. The settlement is a guaranteed $25 million payment against a 5.5% license for 10 years which is worth between $45.47 million to $59.2 million assuming Sirius continues to play the remaining class member’s recordings at the same play rate as the past.

via Flo & Eddie Class Settlement with Sirius on Pre-72 Sound Recordings — Artist Rights Watch

@musicbizworld: @SOUNDEXCHANGE PAID OUT $264M IN Q3 – ITS BIGGEST QUARTER IN TWO YEARS — Artist Rights Watch

[Editor Charlie sez: big 45.2% increase in the number of people getting royalty payments from SoundExchange!] SoundExchange just paid out more than quarter of a billion dollars to recorded music rights holders – its biggest three-month distribution in two years. According to the US company’s latest data, it delivered $263.5m to labels and artists in […]

via @musicbizworld: @SOUNDEXCHANGE PAID OUT $264M IN Q3 – ITS BIGGEST QUARTER IN TWO YEARS — Artist Rights Watch

@edchristman: Commercial Radio Group Files Antitrust Lawsuit Against Irving Azoff’s Global Music Rights — Artist Rights Watch

With ASCAP and BMI still under unaltered consent decrees and SESAC agreeing to rate-setting arbitration in a 2015 settlement, the Radio Music Licensing Committee (RMLC) is going for the grand slam with an antitrust lawsuit against boutique performance rights organization Global Music Rights.

via @edchristman: Commercial Radio Group Files Antitrust Lawsuit Against Irving Azoff’s Global Music Rights — Artist Rights Watch

@alexeheath: Facebook is doing a $6 billion stock buyback [But Nothing for Songwriters] — Artist Rights Watch

Facebook is buying back up to $6 billion of its stock from shareholders, the company announced in a SEC filing on Friday–and still no music licenses.

via @alexeheath: Facebook is doing a $6 billion stock buyback [But Nothing for Songwriters] — Artist Rights Watch